High Court of Justice (England and Wales), Family Division

High Court of Justice (England and Wales), Family Division

United Kingdom - England and Wales

10 March 2021

A (A Child) (Abduction: Jurisdiction: 1996 Hague Convention)

[2021] EWHC 581 (Fam)

First instance

• Article 7
• Article 8

• Article 1
• Article 3
• Article 5
• Article 11

Family Law Act 1986, Children Act 1989

Re A (A Child) [2021] EWHC 3467 (Fam)

Following the wrongful removal of a child from England to Switzerland by her father, the father sought a transfer of proceedings to Switzerland under Article 8 of the 1996 Hague Convention. The case required the court to determine the relationship between Articles 7 and 8 and whether the transfer mechanism could operate where jurisdiction was retained by the State of the child's habitual residence following an abduction. Arbuthnot J held that Article 7 preserves the jurisdiction of the State of the child's habitual residence until the conditions specified in Article 7(1)(a) or (b) are satisfied. Because Article 8 expressly refers only to jurisdiction exercised under Articles 5 and 6, it could not be used to transfer jurisdiction in a case governed by Article 7. The court declined to follow examples in the HCCH Practical Handbook suggesting a broader interpretation and instead relied on the text of the Convention and the Lagarde Explanatory Report. The judgment also contains an important discussion of the relationship between Brussels IIa and the 1996 Convention in transfers involving non-EU Contracting States.

The High Court held that England retained jurisdiction under Article 7 following the child's wrongful removal to Switzerland. Article 8 did not permit a transfer of jurisdiction in circumstances where jurisdiction was retained under Article 7 and the conditions in Article 7(1)(a) or (b) had not been satisfied. The father's application to transfer proceedings to Switzerland was therefore dismissed.

Not provided